By Frank Bowman
Jane Mayer recently reported in the New Yorker that in 2017 President Trump ordered Gary Cohn, former director of the National Economic Counsel, to pressure the Antitrust Division of the Department of Justice to block the pending merger of AT&T and Time/Warner. Trump’s opposition has been widely ascribed to the fact that the AT&T deal would insure the continuing competitiveness of the Time/Warner family of companies, including CNN, which Trump famously reviles. It is speculated that Trump hoped blocking the merger would damage CNN and its parent financially, or even force CNN’s sale, perhaps to a more Trump-friendly owner.
George Conway, indefatigable Trump critic and half of the oddest marriage in contemporary American politics, tweeted that, “If proven, such an attempt to use presidential authority to seek retribution for the exercise of First Amendment rights would unquestionably be grounds for impeachment.”
While I don’t disagree with the constitutional sentiment, obtaining the necessary proof seems to me unlikely.
Let’s start with the constitution. The American founders inherited impeachment from their British parliamentary forbears. In England and America, its most important function has been to protect the constitutional order against executive abuses of power. The phrase “high crimes and misdemeanors” includes serious indictable crimes, but also non-criminal abuses of authority that undercut bedrock principles such as neutral enforcement of national law.
For example, the second article of impeachment approved by the House Judiciary Committee against Richard Nixon encompassed all the many ways he sought to misuse federal agencies to protect his friends and harm his political enemies. It charged that Nixon’s partiality violated his oath to defend the constitution and breached his constitutional duty to take care that the laws be faithfully executed.
A presidential attempt to use the antitrust laws to punish a media company for its unfavorable coverage would violate two constitutional imperatives — the general obligation of impartial enforcement of law and the First Amendment’s particular command that the freedom of the press not be impaired by government action.
The problem would be proving that Trump actually influenced DOJ decisionmaking, or even came seriously close to doing so, for constitutionally impermissible reasons.
On the suspicious side of the ledger is the fact that Trump loudly opposed the merger during the presidential campaign, and that shortly after Trump’s alleged directive to Cohn, the Antitrust Division filed suit to stop the merger. In itself, this need not have been objectionable. Antitrust enforcement is what the Antitrust Division is for. And there is nothing wrong with presidents having strong opinions about antitrust and seeking to implement them. Much of Teddy Roosevelt’s presidential reputation was based on his crusade as a “trust buster.”
What makes Trump’s position, and that of his Justice Department, peculiar is that Trump has no record of prior interest in antitrust policy and that the AT&T – Time/Warner merger was of a type that both modern antitrust law and conservative antitrust scholars have generally found unobjectionable.
To vastly oversimplify, the type of merger antitrust law finds most objectionable is a so-called “horizontal merger,” that is, a merger between companies that compete directly with other by selling the same type of good or service. Horizontal mergers are suspect because they are apt to reduce competition and harm consumers by reducing choice and increasing prices.
By contrast, a “vertical merger” joins companies that do not compete directly with one another, but operate at different points along the same supply chain. For example, an auto manufacturer might acquire a steel mill or an auto parts maker. Some observers believe that such mergers can be undesirable by concentrating too much economic power in a single entity, thus creating barriers to entry and other undesirable effects. Nonetheless, current orthodox antitrust law has generally looked benevolently on such mergers. More to the present point, tolerance of massive, vertically integrated corporate conglomerates is congenial to the generally corporatist position of the Republican Party.
The AT&T – Time/Warner deal is, at least predominantly, a vertical merger. Time/Warner provides media content. AT&T owns content delivery services like cable networks and DirectTV. The last time DOJ sued to stop a vertical merger was over forty years ago. Moreover, the head of the Antitrust Division at the time suit was filed, Makan Delrahim, was on record before Trump’s election as viewing the merger as unobjectionable. His views seemingly changed only after a stint as Deputy White House Counsel and his subsequent appointment to head Trump’s Antitrust Division.
All of this is certainly suspicious, particularly given Trump’s rabid hostility to CNN. But opposition to the AT&T – Time/Warner merger was not self-evidently wrong. Indeed, many voices on the left, including Bernie Sanders, Al Franken, and Elizabeth Warren urged DOJ to stop it. From the point of view of many Democrats, therefore, if Trump tried to get DOJ to block the merger, it would have been a case of doing the right thing for the wrong reasons. Moreover, the nub of the Mayer story about Trump’s order to Gary Cohn was that Cohn walked into the hallway with White House Chief of Staff John Kelly and said, “Don’t you f–ing dare call the Justice Department. We are not going to do business that way.”
It’s possible, of course, that someone made the call anyway, or that Makan Delrahim didn’t need a call to know what the president wanted and why. And that, knowing the president’s wishes, he pursued the case for political reasons and against his better legal judgment. But at this point, that’s all speculation. In any event, DOJ lost in both the trial and appellate court and the merger will now almost certainly proceed.
When a president tries to commit a constitutional wrong, the fact that he is thwarted doesn’t necessarily exonerate him from blame or even impeachment. The House Judiciary Committee pointedly observed that successful resistance by federal officials and agencies to Nixon’s improper commands was not a defense. Nonetheless, if all we have is a president raging around the White House demanding that DOJ do something, but no proof that those demands were ever conveyed to DOJ, still less that they formed a part of the motivation for the Antitrust Division’s actions, what we have is further confirmation of Trump’s authoritarian impulses, but not much in the way of solid evidence for an impeachment case.
There are a host of potentially impeachable behaviors those opposed to Mr. Trump should be pursuing. Absent stunning new revelations, this merger should probably sit low on the list.